14:0754(98)NG - AFGE Local 32 and OPM -- 1984 FLRAdec NG

[ v14 p754 ] 14:0754(98)NG
The decision of the Authority follows:

14 FLRA No. 98
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 32, AFL-CIO
Union
and
OFFICE OF PERSONNEL MANAGEMENT
Agency
Case No. O-NG-914
DECISION AND ORDER ON NEGOTIABILITY ISSUE
The petition for review in this case comes before the Federal Labor
Relations Authority (the Authority) pursuant to section 7105(a)(2)(E) of
the Federal Service Labor-Management Relations Statute (the Statute) and
presents issues concerning the negotiability of the following Union
proposal:
The Competitive Area shall be the Washington Metropolitan Area.
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determination.
The proposal seeks to define a competitive area within the Agency for
purposes of reduction in force. The Agency asserts, and the Union does
not dispute, that the proposed competitive area would encompass
non-bargaining unit employees in addition to bargaining unit employees.
The Agency contends, based upon this fact, that it has no obligation to
bargain over the proposal.
It is well established that the duty to bargain does not extend to
matters concerning positions and employees outside the bargaining unit.
International Federation of Professional and Technical Engineers,
AFL-CIO, NASA Headquarters Professional Association and National
Aeronautics and Space Administration, Headquarters, Washington, D.C., 8
FLRA 212 (1982) and cases cited therein at note 5. However, an agency
generally may bargain over such matters if it so chooses. See, e.g.,
American Federation of Government Employees, AFL-CIO, Local 2 and
Department of the Army, Military District of Washington, 4 FLRA 450
(1980). Insofar as the proposal herein would directly determine
conditions of employment of non-unit employees, it concerns matters
beyond the representation rights of the Union and is not within the
Agency's obligation to bargain. Service Employees' International Union,
AFL-CIO, Local 556 and Department of the Army, Office of the Adjutant
General, Hale Koa Hotel, Honolulu, Hawaii, 9 FLRA 686 (1982).
By way of contrast, the Authority has in two types of cases found
that proposals seeking to define competitive areas were within the duty
to bargain. The circumstances involved in those cases, however, were
materially distinguishable from those present in the instant case.
Thus, in National Treasury Employees Union and Department of Health and
Human Services, Region IV, 11 FLRA No. 53 (1983) (Union Proposal 1), the
Authority held that a proposed competitive area was within the duty to
bargain. In so holding, the Authority considered the only issue raised
by the agency: whether negotiation of the proposal was barred by virtue
of conflict with an agency regulation for which a compelling need
existed. The applicability of the proposal to non-bargaining unit
employees was not asserted by the agency as a ground for precluding
negotiation of the proposal, and, hence, was not considered by the
Authority. /1/ In another set of circumstances the Authority also held
a proposed competitive area to be within the duty to bargain.
Association of Civilian Technicians, Pennsylvania State Council and
Pennsylvania Army and Air National Guard, 14 FLRA No. 6 (1984) (Union
Proposal 1). In that case, the proposal effectively would have limited
the competitive area to the bargaining unit and the Authority found that
the agency had not asserted, nor was it otherwise apparent, that the
proposal was inconsistent with laws or regulations applicable to
National Guard technicians. /2/
Since, in this case, the record establishes that the proposal would
directly determine conditions of employment of employees not within the
bargaining unit, it must be concluded that the proposal is
nonnegotiable. Accordingly, pursuant to section 2424.10 of the
Authority's Rules and Regulations, IT IS ORDERED that the petition for
review be, and it hereby is, dismissed. Issued, Washington, D.C., May
25, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ It is now well established that the parties bear the burden of
creating the record upon which the Authority will resolve negotiability
disputes placed before it. National Federation of Federal Employees,
Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir.
1982).
/2/ In this regard 5 CFR, Part 351, which generally governs
reductions in force in the Federal service does not apply to National
Guard technicians. 5 CFR 351.201(f).